UK's Libel Laws: Still a Legal Minefield

Fri 2nd Jul 2010

Back in December of last year I wrote about the campaign for libel reform and the various high-profile cases which were involved. Six months later, I thought it would be a good time to catch up with the successes and setbacks which have subsequently occurred.

You may be aware of the case of British Chiropractic Association v Singh. Briefly Singh (pictured) had been sued for libel for an article in the Guardian in which he said that the BCA “happily promoted bogus treatments for which there was not a jot of evidence”. Earlier this year Singh won an appeal against a preliminary ruling which had meant that he would not have been able to rely on the “fair comment” defence. The Court of Appeal's ruling, which incidentally re-named the defence of “fair comment” as “honest opinion”, also effectively created a new defence which should ensure that it is a lot more difficult to issue libel claims made in the fields of science and medicine. As an aside, the Court also stated that the BCA's actions by rejecting the Guardian's offer of a right of reply, and suing Singh personally instead of the Guardian, gave the impression that they were in fact more interested in silencing him than in seeking justice. Less than two weeks after this ruling, the BCA filed a Notice of Discontinuance in the case, i.e. they gave in. All that needs to be dealt with in this case is the legal costs which BCA will have to pay Singh.

In a case which can only be described as pointless, the left-wing blogger Dave Osler had been sued for comments left on a post of his regarding Tower Hamlets Conservative politician Johanna Kaschke. In Osler's article over an alleged link between Ms Kaschke and the 70s German terrorists the Baader-Meinhof Group, and which had actually accepted her explanation that it was a “youthful folly”, she had been described in the comments as being “one cherry short of a Schwarzwalderkirschtorte”, over her political moves: she had moved from being a member of the Communist Party, to Labour, to Respect and finally to the Conservatives. Her case was thrown out as an abuse of process: she had been offered a right of reply on Osler's website, the facts of the case where not disputed by Ms Kaschke and such a small amount of damages would, in the event of the claim succeeding, be awarded that the case was not worth taking any further. This was three years after the original post was published and two years after proceedings had been issued.

There have been two attempts to amend the libel laws through Parliamentary means. Firstly, prior to the General Election there was an attempt by then-Justice Secretary Jack Straw to reduce success fees (the bonus that Solicitors and Barristers receive for winning a case) in libel cases from the current maximum of 100 per cent to 10 per cent. Unfortunately, this was defeated - at a surprise to all - in a Parliamentary Commission. It remains to be seen whether there will be a further attempt to reduce the fees. Independently of this, a draft Defamation Bill has recently been published by Lord Lester. Amongst other things is would scrap the 150-year old multiple-publication rule, and replace with a single-publication rule, i.e. you could only be liable for the first time an article is published, not every time it is accessed on an internet site. Unfortunately it maintains the presumption of guilt in libel cases, but would ensure that in order to sue for libel you would have to establish that serious damage has been sustained to your reputation. Interestingly, last week there was a ruling in the case of Thornton v Telegraph Media Group Ltd, which appears to have introduced a test of “substantial harm” into libel proceedings, and so the proposed Bill would simply put this on a more formal basis.

In other libel cases, there were further encouraging rulings made in Smith v ADVFN Plc, upholding a ruling that messageboard posts are slander, not libel. The impact of this decision is that it is a lot more difficult to sue someone for defamation for something that is posted on a messageboard. While there was the quite odd case of Singh v Singh: a case over whether a journalist at the Sikh Times had libelled a Sikh holy man in 2007 by saying he was a “cultist”. The High Court ruled that this was not a matter for a Court because it was a matter of religious doctrine, instead of facts, so dismissing the case.

Finally, on Thursday it was reported that the Metropolitan Police, the Press Complaints Commission and its head are for being sued for libel in relation to claims made in the investigation into the alleged phone-tapping by the News of the World. The claim has only just been issued, so there is nothing to report on as yet, however, it may be a case to keep an eye out for.